Academic journal article
By Gulati, Jasmeet; Khosa, Ivan
Denver Journal of International Law and Policy , Vol. 41, No. 3
Is it possible to resist evil without succumbing to the dangers of righteousness?
This question, posed by Tzvetan Todorov, aptly sums up the debate over the issue of humanitarian intervention. (1) The heart of the debate is the perceived conflict between the notion of state sovereignty and the concept of humanitarian intervention. While NATO's intervention in Kosovo was seen as a direct attack upon the state sovereignty, the silence of the international community to intervene in gwandan genocide at the same time has also been criticized as a failure of the community of nations to protect the lives of those people. Many jurists seem to contend that these two concepts can never co-exist. (2) They hold humanitarian intervention as inconsistent with the concept of sovereignty. However, as former Secretary-General Kofi Annan asserted in September 1999, "if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica--to gross and systematic violations of human rights that offend every precept of our common humanity?" (3)
This paper does not intend to suggest that the principle of sovereignty of individual states is violable in favor of humanitarian intervention. Rather, it tries to demonstrate that when an authority appointed to enforce sovereignty starts to violate that sovereignty, the international community must step in to stop the violation of this impregnable principle. This argument centrally rests on a standard assumption that the concept of sovereignty is separable from the authority appointed as sovereign. The authority appointed as a sovereign is the one governing its people, and could be termed as government. The purpose of government is to secure the people's rights. Thus, the sovereign is meant to protect the rights and interests of its citizens. Therefore, if the sovereign engages in policies that threaten the basic purpose for the enforcement of sovereignty, he will be said to be violating the sovereignty of his state and his people. Due to this, sovereignty can no longer vest in its violator, and he will not be able use its inviolability as a defense when international actors intervene on humanitarian grounds to protect the sovereignty of that state by preventing the ruling sovereign from violating it. This paper will also explicate the basic purpose of sovereignty along with the principles of self-determination, non-intervention, and Article 2(4) of the U.N. Charter along with various moral and ethical limitations in the context of humanitarian intervention.
A. Research Methodology
This paper is divided into four sections. The first section discusses the basic concept of humanitarian intervention. Here, we will argue that the basic criticism of this concept revolves around the principle of state sovereignty. The second section tries to delineate the core features of sovereignty that have survived the interpretations of numerous jurists throughout history. The third section discusses the legality of humanitarian intervention by testing its validity using the core features of sovereignty in light of other principles, including self-determination and non-intervention. The final section highlights the emerging doctrine of responsibility to protect and its acceptance of a genial relation between the concept of sovereignty and humanitarian intervention.
B. Scope and Limitations
The research is limited to only one aspect of humanitarian intervention, namely, its relation with the concept of sovereignty. Most of the issues raised in this paper are only incidental to this main issue of sovereignty and its relation to humanitarian intervention. In this paper we do not deal with other disputes regarding humanitarian intervention--for example, the debate whether sufficient state practice and opinio juris exists to establish humanitarian intervention as a customary law or not. …